India: CCI increases enforcement activity and scrutiny of merger control

In summary

This article provides an overview of key developments in Indian competition law jurisprudence in 2022, with respect to both enforcement and merger control.

Discussion points

• Investigations into traditional and digital sectors
• Softening of cartel-related penalties for small and medium-sized enterprises but continuing significant penalties for large multinationals
• Green Channel route for approval notifications proving successful
• Increased focus from the Competition Commission of India on tackling gun jumping in 2022
• Major change expected to follow once the Competition (Amendment) Bill 2022 is enacted
• National Company Law Appellate Tribunal in most – but not all – cases upholds Competition Commission of India’s jurisdiction

Referenced in this article

• Competition Act 2002
• Competition (Amendment) Bill 2022

Introduction

As the covid-19 pandemic ebbs and the Indian economy recovers, the Competition Commission of India (CCI) has returned to conducting its operations in an unimpeded manner. Coupled with the growth of foreign direct investment into India and the start-up boom, the Indian merger control regime witnessed a record 100 filings in 2022, a significant increase from the number of filings (87) made in 2021. The CCI’s prowess in enforcement was laudable, with the Director General (DG), the CCI’s investigative arm, conducting several dawn raids in 2022.

Some highlights that dotted Indian competition law jurisprudence include the CCI imposing a penalty of 22.74 billion rupees on Google for abusing its dominant position through its Play Store policies and Android mobile device ecosystem.^[1] On the merger control front, in line with its image as a business-friendly regulator, the CCI approved various complex combinations while also increasing its focus on the assessment of gun jumping by parties to a combination. The CCI passed 11 gun-jumping orders in 2022, which is a large increase from the two passed in 2021, showing the heightened level of focus.

On the legislative front, the government has finalised the Competition (Amendment) Bill 2022 (the Amendment Bill), which is awaiting consideration by Parliament. The Amendment Bill, if brought into force without much alteration, will considerably alter the existing competition law landscape in India.

Enforcement

The Competition Act 2002 (the Act), along with its allied regulations and notifications, governs the Indian competition law landscape. Section 3 of the Act prohibits anticompetitive agreements including both horizontal and vertical agreements that cause or are likely to cause an appreciable adverse effect on competition (AAEC) in India. Section 3(3) of the Act prohibits horizontal agreements or cartels that fix prices, allocate areas of operation, limit technological innovation and rig bids. Vertical agreements that cause AAEC – such as exclusivity arrangements, tie-in arrangements, refusal to deal and resale price maintenance – are prohibited by section 3(4) of the Act. Section 4 of the Act forbids abuse of dominant position, including predatory pricing, denial of market access, imposing unfair or discriminatory conditions or prices, and leveraging, among others.

CCI’s approach in the aftermath of covid-19

The CCI has adopted an increasingly dynamic approach in its enforcement decisions in the wake of the covid-19 pandemic and associated hardships. On one hand, while it has focused on economic recovery – particularly for micro, small and medium-scale enterprises (MSMEs) – the CCI has not shied away from imposing high penalties on multinational corporations. The CCI passed 22 penalty orders in 2022 for contravention of either section 3 (anticompetitive agreements) or section 4 (abuse of dominance) of the Act. However, it refrained from imposing penalties and issued only cease-and-desist orders in six of these 22 orders.

While abstaining from imposing penalties in certain cases,^[2] the CCI recognised the pandemic’s adverse impact on Indian MSMEs. Inflicting the penalty itself could render MSMEs economically unviable resulting in market exit. Regardless, the CCI sought to deter infringers from engaging in anticompetitive behaviour through the issuance of cease-and-desist orders, through which infringers were ordered to cease their anticompetitive behaviour and warned about appropriate consequences should their conduct continue to run afoul of the Act.

These decisions mark a departure from the CCI’s past approach to cartels. The CCI has consistently and severely penalised cartel participants since 2011. Considering the cartel infringements decided upon by the CCI in 2022,^[3] it is apparent that the CCI refrained from imposing penalties in most cases in light of the financial health of the infringing parties, among other factors.

Divergent from the above trend, the orders of the CCI in the Shipping Lines,^[4] Soil Samples,^[5] North Western Railway^[6] and Protective Tubes^[7] cases brought back the CCI’s rigorous treatment of cartels. The CCI imposed combined penalties of 670 million rupees on the infringing parties in these cases. These decisions indicate that the CCI’s lenient approach to cartel behaviour may only be available to MSMEs.

Uptick in dawn raids

After a slew of raids in 2019, the CCI conducted the highest number of dawn raids in a single year in 2022. In March 2022, the DG raided tyre manufacturers on allegations of bid rigging. In April 2022, in a first-of-its kind raid, the DG raided third-party sellers on Amazon and Flipkart regarding allegations of entering into anticompetitive vertical agreements. In the same month, the DG conducted raids on mining firms in eastern India on allegations of price collusion. Recently, in December 2022, the DG conducted raids on several steel firms and certain cement manufacturers in different cases.

However, as seen in the recently decided Pulses cartel case,^[8] a dawn raid might not always lead to a finding of contravention by the CCI. In this case, the CCI took up suo motu cognisance based on information in the public domain, highlighting allegations of cartelisation among pulse importers relating to a sudden increase in prices and the creation of artificial scarcity of pulses in India in 2015–2016. During the course of its investigation, the DG conducted dawn raids on the premises of major pulse importers and found evidence of communication in relation to prices and stocks between various importers. This, among other things, led the DG to conclude a finding of collusion between the importers. However, in a first-of-its kind order, the CCI observed that the pulses importers did not violate the Act on account of:

• the underlying market structure;
• the relationship between the competitors; and
• the unique characteristics of the Indian pulse import market.

Accordingly, the CCI rejected the report prepared by the DG and exonerated the pulse importers despite findings against them in the DG’s investigation report.

Tech sector on the government’s radar

In 2022, the CCI initiated a flurry of investigations into activities of prominent players in the digital and e-commerce sector, including the likes of Google LLC,^[9] Zomato Limited, Bundl Technologies Private Limited and Bigtree Entertainment Private Limited. The investigations cover various aspects of digital markets including e-commerce platform services and smart device operating systems.

The increased focus on the tech sector is also evident from the fact that the Parliamentary Standing Committee on Finance recently released a report recommending a binding code of conduct for big technology companies that may be identified as systemically important digital intermediaries (SIDIs) operating in the digital market. Taking a cue from jurisdictions such as the European Union, Germany, the United Kingdom and the United States, the report recommends ex ante regulation of SIDIs to create a level playing field for all businesses and global harmonisation of digital regulations. Further, the report highlights key anticompetitive practices that may be carried out in the digital market and provides a set of recommendations to create a governing framework for SIDIs. Acknowledging the distinct nature of digital markets and the increased potential for their growth in India, the report also recommends the introduction of a Digital Competition Act and the institution of a dedicated Digital Markets Unit to monitor and review identified SIDIs, emerging SIDIs and other digital players with the ultimate aim to ensure increased transparency, fairness and contestability in digital markets.^[10]

Google penalised for abusing its dominant position

Concluded investigations

In 2019, the CCI ordered an investigation into Google for the alleged abuse of its dominant position in multiple markets in the Android mobile device ecosystem. The information filed against Google alleged, among other things, that:

• Google had entered into multiple one-sided agreements with original equipment manufacturers (OEMs) to mandate the pre-installation of Google’s proprietary applications (apps) – such as Google Maps, Gmail and YouTube – leading to denial of market access for rival apps; and
• such agreements prohibited the ability of OEMs to further innovate and develop devices operating on alternative versions of Android.

On 20 October 2022, the CCI issued a final order against Google,^[11] wherein it observed that Google had leveraged its dominant position in multiple markets in the Android mobile device ecosystem by requiring Android device OEMs to pre-install Google’s proprietary applications as a prerequisite to gain access to its Android mobile operating system (OS). Observing Google to be dominant in the relevant markets (with a market share of approximately 95 per cent), the CCI noted that the tying of Google’s apps with its Android OS by way of various agreements enabled it to gain a competitive edge over its rivals. Acknowledging the role of network effects, coupled with prominent placement and a status quo bias, the CCI noted that significant entry barriers were created for Google’s rivals in the identified markets, with the end result being foreclosure of competition and limiting choices for the end consumer. In addition to a penalty of 13.37 billion rupees, the CCI directed Google to implement certain remedial measures within a period of three months in furtherance of its cease-and-desist order.

On 25 October 2022,^[12] the CCI imposed another penalty of 9.36 billion rupees on Google. Emanating from an investigation ordered by the CCI in 2020,^[13]
on 20 October 2022, the CCI observed that Google had abused its dominant position in the market for licensable mobile OS for smart mobile devices and the market for app stores for Android OS.

The CCI noted that Google, through the institution of anticompetitive payment policies on its Play Store, ensured that its online payments app Google Pay was the only option available for consumers and app developers to make payments on the Play Store. This effectively amounted to denial of market access for competing applications. Analysing various agreements entered into between Google and developers of applications on the Play Store – such as the Developer Distribution Agreement, the Developer Program Policies, the Google Payments Terms of Service: Sellers and the Anti-Steering Provisions – the CCI observed that:

• the Google Play Billing System (GBPS) was the only form of payment processing available to app developers for purchases made on the Play Store;
• app developers failing to use the GBPS were delisted from the Play Store; and
• app developers were forced to pay a significant service fee (approximately 15 to 30 per cent) for the app and in-app purchases, which was unfair and discriminatory, thereby resulting in Google abusing its dominant position.

The introduction of remedies alongside cease-and-desist orders is a step aimed at eliminating anticompetitive behaviour, prompting a reconsideration of general litigation strategies.

Ongoing investigations

The CCI directed two new investigations into Google in 2021 and 2022. The CCI’s 2021 investigation order^[14] is related to allegations of abuse of dominant position in the smart television operating system (TV OS) market. In its prima facie decision, the CCI noted that the agreements between Google and Android TV licensees granting access to the Android smart TV OS required Android TV licensees to:

• pre-install the entire suite of Google apps;
• comply with minimum Android compatibility requirements; and
• preload Google apps and place them on the default home screen.

The CCI was of the prima facie view that Google’s conduct amounted to an anticompetitive vertical agreement as well as abuse of dominant position and directed an investigation by the DG.

In January 2022, the CCI ordered another investigation into Google regarding allegations of abuse of dominant position suffered by news publishers.^[15] Upon prima facie consideration, the CCI found Google’s unilateral and opaque methodology for determining and sharing advertising revenue with online news publishers and not paying them for using their websites’ ‘snippets’ in Google’s search results as abusive and directed the DG to investigate.

Online hotel aggregators penalised heavily for violating the Act

In 2019, the CCI initiated a probe into MakeMyTrip Private Limited and Ibibo Group Private Limited (collectively, MMT-GO) and Oravel Stays Private Limited (Oyo) in relation to vertical restraints (leading to denial of market access) and abuse of dominance, possibly resulting in foreclosure for hotels and accommodation.^[16] The investigations culminated in the CCI observing that MMT-GO had abused its dominant position in the relevant market while MMT-GO and Oyo were found to have entered into an anticompetitive vertical agreement resulting in denial of market access for rivals of Oyo.^[17]

However, on 6 December 2022, the National Company Law Appellate Tribunal (NCLAT) stayed the penalty imposed on MMT-GO for its anticompetitive practices, subject to MMT-GO depositing 10 per cent of the penalty amount. The stay was limited to the amount of penalty imposed and no stay was granted on the non-monetary measures directed by the CCI. Subsequently, MMT-GO approached the Delhi High Court challenging the NCLAT order. The Delhi High Court, on 14 December 2022, upheld the NCLAT order but specifically ordered that no recovery be effected against the remaining 90 per cent of the penalty amount payable by MMT-GO.^[18]

CCI jurisdiction and orders supported by the appellate forums

The CCI is seemingly well supported by appellate forums in its heightened scrutiny of various sectors.

In 2021, the CCI suspended its 2019 approval of Amazon.com NV Investment Holdings LLC’s (Amazon Investments) acquisition of a 49 per cent equity stake in Future Coupons Private Limited (FCPL) on grounds of non-disclosure of material information and imposed a penalty of 2.02 billion rupees on Amazon Investments.^[19] Aggrieved by the order, Amazon filed a petition with the NCLAT. Dismissing the appeal, the NCLAT observed that Amazon had failed to notify the combination in accordance with the Act. While upholding the CCI’s order, the NCLAT reduced the penalty payable by 10 million rupees. As at January 2023, Amazon’s appeal against NCLAT’s judgment is pending before the Supreme Court of India (SC).

Following WhatsApp’s 2021 update to its terms of service and privacy policy, the CCI initiated an investigation in March 2021 into possible abuse of dominance by WhatsApp on account of the ‘take it or leave it’ nature of the policy.^[20] Meta Platforms Inc (Facebook) and WhatsApp challenged the CCI’s order before the Delhi High Court on the grounds that the 2021 policy itself was disputed and pending adjudication before the SC. However, as early as April 2021, the Delhi High Court rejected this argument and refused to interfere with the CCI’s investigation, upholding its jurisdiction to initiate an antitrust inquiry.^[21] Facebook and WhatsApp challenged this order before a larger bench of the Delhi High Court, which was rejected, and the CCI’s jurisdiction to initiate the investigation was upheld. Subsequently, Facebook also approached the SC, which dismissed the appeal and upheld the CCI’s jurisdiction.^[22]

Similarly, in the Intel case, the CCI issued an order ordering investigation against Intel Technology India Private Limited and Intel Corporation (collectively, Intel) for alleged abuse of dominant position. Aggrieved by the order, Intel filed a writ petition before the Karnataka High Court. The court dismissed the writ petition on the grounds that the CCI is an expert body and that it could not interfere with its investigation, subject to exceptions. Additionally, the court imposed a fine of 1 million rupees on Intel for attempting to scuttle the CCI’s statutory proceedings.^[23]

More recently, on 23 December 2022, the NCLAT also upheld CCI’s order^[24] and imposition of penalty in the Beer cartel case.^[25] The appellants had argued before the NCLAT that the CCI’s order was liable to be rejected as it found the appellants guilty based solely on their leniency applications. Dismissing the appeal, the NCLAT clarified that, once the parties had filed leniency applications and admitted their offence of cartelisation, they are only entitled to question the quantum of penalty imposed and not argue on merits.

Further, in certain cases, the NCLAT has remanded matters back to the CCI for reconsideration of specific issues. For instance, on 1 December 2022, the NCLAT disposed of appeals filed against the CCI order that found a few tyre manufacturers guilty of cartelisation.^[26] Based on certain mathematical errors, incorrect calculations of the penalty amount and other flaws highlighted by the parties, the NCLAT observed a possible non-existence of price parallelism and insufficiency of evidence to prove any agreement among the parties. Thus, it remanded the matter back to the CCI for review, including the amount of the penalty imposed on the parties (17.89 billion rupees).

Similarly, in a bid-rigging case regarding liquefied petroleum gas cylinders, the NCLAT upheld the CCI’s findings with respect to cartelisation but remanded the matter back to the CCI for re-computation and review of the amount of the penalty imposed on the parties.^[27]

Most attempts to stall investigations or scuttle proceedings have been thwarted by the Indian judiciary. This, coupled with the recent trend for adopting a proactive and holistic approach by the higher judiciary while examining issues arising from CCI orders, is a promising sign for enforcement-related competition law jurisprudence in India.

Merger control

The year 2022 marked 11 years of the enforcement of the substantive provisions dealing with Indian merger control (sections 5 and 6 of the Act). Accordingly, a transaction must be notified to the CCI if it breaches any of the asset or turnover thresholds. No part of a reportable transaction can be implemented or put in effect without the CCI’s prior approval. Breach of this golden rule can attract monetary penalties.^[28] During the initial enquiry (Phase I review), the CCI is required to form a preliminary view on the likelihood of the transaction to cause or not cause an AAEC within India.^[29] In the absence of any competitive concerns, the CCI typically approves the transaction in the Phase I review. If the CCI is of the prima facie view that the transaction can cause an AAEC, it is required to commence a detailed investigation (Phase II review) and may approve or block the transaction.^[30] Notably, the CCI has not yet completely blocked any merger application and has, either conditionally or unconditionally, approved all notified transactions.

Renewal of key exemptions by the Ministry of Corporate Affairs

In line with the government’s Ease of Doing Business initiative, the Ministry of Corporate Affairs (MCA) pre-emptively extended the applicability of two key notifications dealing with the de minimis exemption^[31] and merger filing timelines.^[32]

De minimis exemption

For context, a transaction must be notified to the CCI if it breaches any of the asset or turnover thresholds set out under the Act. As a result, even if a transaction entails the acquisition or transfer of a comparatively small enterprise or business, the transaction may attract CCI scrutiny if the acquirer’s financials alone breach the thresholds. Based on the premise that competitive concerns are unlikely to arise from transactions involving such small target enterprises, the MCA, through a series of notifications (the latest of which was dated
27 March 2017),^[33] had exempted transactions from a pre-clearance requirement where:

• the value of assets of the target asset or target enterprise was not more than 3.5 billion rupees in India; or
• the turnover of the target asset or target enterprise was not more than
  10 billion rupees.

This notification was valid for five years until 28 March 2022. The deadline has been extended further by the MCA until 28 March 2027.

Merger filing timelines

The Act requires parties to a combination to file a merger notification with the CCI within 30 calendar days of a trigger event.^[34] Pertinently, a failure to do so can expose transacting parties to gun-jumping proceedings (even if such a belated filing is not truly a case of gun jumping) and resultant penalties. Given that India is a mandatory and suspensory regime, and that preparation of comprehensive merger notification is a time-consuming process, the MCA, by way of a notification dated 29 June 2017, relaxed the onerous 30-day requirement to file the merger notification with the CCI for a period of five years until 28 June 2022. This notification was pre-emptively extended by the MCA through a notification dated 16 March 2022 for a period of five years until 28 June 2027. As a result, parties can easily file a merger notification after the occurrence of a trigger event and prior to consummation of the proposed transaction in part or in whole.

Success of the Green Channel Route

By way of a notification dated 13 August 2019,^[35] the CCI amended the Combination Regulations^[36] and introduced the fast-track Green Channel mechanism for notifying transactions where parties to a transaction (including downstream affiliates) do not exhibit any horizontal, vertical or complementary overlaps (the Green Channel Route). A transaction notified under the Green Channel Route receives automatic CCI approval upon filing and is not subject to the conventional 30-working-day waiting period. Moreover, the burden of information and competitive analysis on parties is significantly lower. Such a notification can be made only through Form I but without market-facing information considering no overlaps between the transacting parties.

The Green Channel Route was introduced in the wake of a rise in private equity investments in India, which are typically characterised by non-problematic minority acquisitions. Out of a total of 100 transactions notified to the CCI
in 2022, as many as 25 transactions were notified under this route.

CCI’s increased focus on tackling gun jumping

In light of the mandatory and suspensory nature of the Indian merger control regime, parties to a combination are not permitted to consummate the transaction either in part or in whole prior to receiving CCI approval. Given that combination filings are only increasing, the CCI is back to tackling gun-jumping issues with a fervour. This is evinced by the fact that the CCI issued orders and imposed fines in over 11 cases^[37] through the course of the year, as opposed
to 2021, where it issued orders and imposed fines in only two cases.^[38]

Of the 11 orders issued by the CCI in 2022, nearly 50 per cent of these orders involved open-market purchases and the parties had acquired rights not available to an ordinary shareholder such as, among others, appointment of a director to the board of the target and information rights. Pertinently, in a few cases with the acquirers having already consummated the initial transaction, the acquirers approached CCI for the follow-on transaction. While assessing the notices filed by the parties, the CCI examined the underlying transaction documents to unearth the intent of the parties to the combination. Observing that the parties had failed to take approval for the initial transaction, the CCI imposed penalties on them for gun jumping.

A proposed amendment to the Act dealing with the derogation of standstill obligations for open-market purchases is expected to address the rise in gun-jumping cases emanating from open-market purchases and align the Indian merger control regime with international best practices.

International cooperation and increased stakeholder engagement

Acknowledging the rise in cross-border transactions, global cartels and shared policy challenges, the CCI reinforced its international network by entering into a memorandum of understanding with the Competition Commission of Mauritius on 23 February 2022. The CCI already has cooperation agreements with several antitrust agencies, including in Europe, the United States, Japan, Brazil, Russia, China, Australia, South Africa and Canada.

In line with the government’s Ease of Doing Business initiative, the CCI routinely engages with interested stakeholders with the objective of understanding industry concerns. Statistics from 2022 indicate an increase in the CCI undertaking advocacy initiatives such as:

• increased information sharing between regulatory agencies;
• engaging with statutory authorities for undertaking competition assessment of model concession agreements; and
• organising events on competition law for government officials, including judges from high courts and civil servants, among others.

The increased engagement is expected to translate into greater awareness about competition law principles for the stakeholders.

Increased focus on market studies

Mandated by section 49 of the Act and matching the trend shown by its counterparts worldwide, the CCI boosted its competition advocacy activities
in 2022 by conducting detailed market studies across various sectors and releasing its key findings and observations on the cab and taxi aggregator industry as well as the film industry. These studies provide deep insights into the industry landscapes and their inherent peculiarities as well as upcoming competition trends. They also provide a sneak peek into the CCI’s regulatory approach towards the applicable sector. These market studies have equipped the CCI with greater industry knowledge that has seemingly translated into effective enforcement actions.

Amendment Bill

The Amendment Bill seeks to bring about significant substantive and procedural changes to the extant competition law framework, which last underwent a significant legislative amendment in 2007. Reforms to the Act have been attracting the spotlight since 2019, when the government constituted the Competition Law Review Committee to recommend modifications to the existing law to align it with global best practices.

As outlined below, the Amendment Bill is indicative of the progressive and dynamic approach of India’s competition regime. It remains to be seen when the proposed amendments will be implemented.

Introduction of deal value thresholds

In addition to the existing value of asset- and turnover-based thresholds prescribed under the Act, a new deal value threshold has been proposed to be introduced. Where the value of any transaction exceeds 20 billion rupees and the enterprise that is a party to the transaction has substantial business operations in India, it would be considered a reportable transaction under the Act. If none of the exemptions provided under the law apply, such a transaction would require approval from the CCI. While the Amendment Bill does not clarify the scope and import of ‘substantial business operations in India’, guidance is expected to follow from the CCI. The introduction of deal value thresholds is expected to catch transactions in various sectors (particularly the digital sector) where target entities usually do not have a substantial asset base or turnover. Pertinently, there is no clarity on whether the introduction of the deal value thresholds would result in cessation or revision of the existing de minimis thresholds.

Merger review timeline

The Amendment Bill proposes to shorten the merger review timeline in Phase I investigations from the current 30-working-day period to a 20-calendar-day period. The overall review timeline granted to the CCI under the Act is also to be shortened from 210 to 150 calendar days. The shortened timelines under the Amendment Bill would add a significant burden on the CCI as well as the filing parties to complete review, while also potentially increasing the risk of merger filings being invalidated if CCI requests are not addressed.

Pragmatic stand on control

The Amendment Bill proposes to expand the definition of ‘control’ to the lowest threshold to include the ability to exercise material influence. As the CCI has always interpreted the term ‘control’ to include material influence, the Amendment Bill formalises the existing practice of the CCI. This amendment allies with the recent lapse of an earlier notification issued by the MCA that specified the threshold of group companies at 50 per cent ownership, which is presently at 26 per cent.^[39] Overall, these developments mean that the CCI will be able to cast a wider net to gain higher coverage over companies that will have to be considered for testing jurisdictional thresholds and mapping overlaps between parties to a transaction.

Derogation of standstill obligations for open-market purchases

The Amendment Bill seeks to exempt a transaction from standstill obligations if such a transaction involves an open offer or an acquisition of securities through a series of transactions on a regulated stock exchange, subject to certain conditions. Tying this with the rise in gun-jumping proceedings emanating from the open market, it is expected that the Amendment Bill will permit parties to structure transactions involving listed companies with greater freedom.

Framework for settlements and commitments

The settlement mechanism will enable parties to apply for closure of proceedings after the DG submits the investigation report but before the CCI’s final order. Parties can apply for commitments after a DG investigation has begun but prior to the submission of the DG’s investigation report to the CCI. Pertinently, settlements and commitments will be available to parties in investigations of vertical anticompetitive agreements and abuse of dominant position only and not for cartelisation. The introduction of the settlements and commitments regime will likely be a paradigm shift on the enforcement front.

Mandatory pre-deposit for appeals

The right to appeal certain CCI orders will be contingent on the payment of a penalty deposit, aimed at enhancing penalty recovery and preventing superficial appeals.

Increased penalties for gun jumping

The Amendment Bill enhances the penalties for furnishing false information or failing to furnish material information in merger control cases from 10 million to 50 million rupees. Further, the scope of gun-jumping provisions has also been expanded to empower the CCI to penalise parties where they do not provide information requisitioned by the CCI to evaluate whether a non-notified transaction was actually reportable.

Leniency plus

The Amendment Bill proposes to make significant changes to the leniency or lesser penalty programme that include, among others:

• the introduction of leniency plus, which empowers the CCI to grant additional lenience in a penalty in a situation where a party being investigated for collusive conduct makes a true and vital disclosure of another undisclosed cartel; and
• withdrawal of a leniency application by the applicant.

Conclusion

While the Indian competition regime is relatively young, it has exhibited remarkable agility and nimbleness in swiftly retooling itself to align with rapidly evolving times. Given the proactive nature of the CCI and the increased focus on developing jurisprudence, it is expected that the Indian antitrust regime is on a par with established regimes around the globe.

This is also evinced by the CCI’s active participation in the International Competition Network and conferences involving Brazil, Russia, China and South Africa, indicating that the regime has maintained its commitment to contributing enthusiastically on an international level regarding issues of shared interests and common themes. The past two years have demonstrated that the CCI has thoughtfully strategised a multi-pronged approach to discharging its mandate effectively – it has launched market studies to decode complexities in emerging markets and identify areas susceptible to anticompetitive conduct and its concerted efforts towards tackling anticompetitive behaviour across sectors indicate that enforcement is a priority for the CCI. Even on the merger control front, while the Green Channel benefit appears to have accomplished what it was positioned to achieve (ie, easing the merger approval process for investors), the standard of control devolving towards material influence could reshape the future of merger control in India.

Last but not the least, with the Amendment Bill almost ready for implementation, the existing competition law landscape is poised for a major overhaul and will likely mark a paradigm shift with the introduction of a whole suite of new features, such as settlement and commitments, an extension of the intellectual property rights exemption to abuse of dominance and deal value thresholds. As an incubator for over 100 unicorn companies, India is supremely positioned with numerous antitrust developments unfolding at a near supersonic pace.

Notes